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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Ruddy v Chief Constable, Strathclyde Police & Anor (Scotland) [2012] UKSC 57 (28 November 2012) URL: https://www.bailii.org/uk/cases/UKSC/2012/57.html Cite as: 2013 SC (UKSC) 126, 2012 GWD 40-779, [2012] UKSC 57, 2013 SLT 119, 2013 Rep LR 67, [2013] HRLR 10, 2013 SCLR 110 |
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Michaelmas Term
[2012] UKSC 57
On appeal from: [2011] CSIH 16
JUDGMENT
Ruddy (AP) (Appellant) v Chief Constable, Strathclyde Police and another (Respondents) (Scotland)
before
Lord Hope, Deputy President
Lady Hale
Lord Mance
Lord Kerr
Lord Reed
JUDGMENT GIVEN ON
28 November 2012
Heard on 29 October 2012
Appellant W James Wolffe QC Kenny McBrearty (Instructed by Taylor & Kelly) |
Respondent Rory Anderson QC Douglas Ross (Instructed by Simpson & Marwick and The Scottish Government Legal Directorate) |
LORD HOPE (with whom Lady Hale, Lord Mance, Lord Kerr and Lord Reed agree)
The proceedings
The issues as to competency
"Any practitioner in the business of civil litigation might, when faced with this omnibus approach to several claims in a single action, query the appropriateness of this approach. He or she might reflect that in a single sheriff court action a straightforward claim for damages for assault finds itself coupled with (a) a claim for breach of the substantive obligation under article 3 of the Convention and (b) claims against two defenders 'severally' for breaches of the obligation arising under the article as regards investigation and inquiry. One action is being brought against two separate defenders with three distinctive juristic bases of claim being made."
"What the appellant's averments in articles 8, 9, 10 and 11 seek, in substance, is to have reviewed the investigatory proceedings that have been carried out so far, to have a finding that these proceedings were incompatible in some way with article 3 of the Convention and consequently that the appellant is entitled to damages for breach of Convention rights, not because of any assault. That is quite simply a separate and distinct claim in law from a claim based on common law assault and deals with quite distinct subject-matter in fact and law. This claim, when properly analysed, involves an attack, in administrative law, on administrative acts and decisions, namely the administration of the complaints procedure in the instant case and possibly also an attack on the adequacy or otherwise of established procedures in general."
He said that it raised questions which, normally at least, would require to be made the subject of judicial review in the Court of Session. Returning to this point in para 14, Lord Clarke indicated that this objection extended to the claim for just satisfaction for breach of the substantive obligation under article 3 that was the subject of the first crave as well that which was the subject of the second crave. He said that the claims would require to be brought by way of judicial review. This was because, once unshackled from the claim of damages for assault, the appellant's claims involving human rights questions required the procedures in question to be reviewed and tested in accordance with administrative law principles: Clyde and Edwards, Judicial Review (2000), para 8.16; Cocks v Thanet District Council [1983] 2 AC 286.
"It is a well established principle of our law and procedure that
'one pursuer cannot sue two or three defenders for separate causes of action, and put into his summons a conclusion for a lump sum, and then by means of putting in the words 'jointly and severally, or severally', as the case may be, ask the court to split up this lump sum of damages and give a several decree for what the court thinks proper'
(Ellerman Lines Ltd v Clyde Navigation Trs 1909 SC 690, pp 691,692; see also Barr v Neilson (1868) 6 M 651; Maclaren, Court of Session Practice, p 266; Thomson and Middleton, Manual of Court of Session Practice, pp 56, 57, 65). The present proceedings seek to address three distinct issues, distinguishable in fact and law, against two separate defenders. Our system of pleading does not provide, nor should it provide, for such an approach. To countenance such a procedure would, among other things, fly in the face of the practice in relation to conjunction of processes….This attempt at an 'omnibus' approach to pleading distinct causes of action against different defenders in the same action also runs counter to the approach of the court in relation to counterclaims."
What the appellant was seeking to do in these proceedings, he said, was to bring an action against two defenders in a case of unconnected wrongs. This objection was taken to the proceedings as a whole, the question being whether it was competent for the appellant to raise in a single action a common law assault claim against the Chief Constable and a procedural article 3 claim against the Chief Constable and the Lord Advocate. It was a ground for dismissing the whole case as incompetent.
"can there be two distinct defenders in relation to alleged breaches of the state's obligations under article 3 of the Convention?"
As this matter had not been discussed at all the court expressed no concluded view on it, but said it was an issue that might merit further consideration. This objection, it seems, was to the fact that the procedural article 3 claim was the subject of a crave directed against the Chief Constable and the Lord Advocate severally.
(1) Was it competent for the appellant to bring his claims for damages in respect of the substantive article 3 claim and the procedural article 3 claim, or either of them, by way of action or did he require to bring them, or either of them, by way of judicial review?
(2) Was it competent for the appellant to raise the common law assault claim and the substantive article 3 claim against the Chief Constable and the procedural article 3 claim against the Chief Constable and the Lord Advocate together in the same action?
Mr Anderson QC for the respondents did not seek to support the reasoning of the Extra Division on the first issue. He said that he was in broad agreement with the way the appellant presented his argument, but he drew attention to the way Lord President Hamilton analysed the case in Docherty v Scottish Ministers [2011] CSIH 58, 2012 SC 150, paras 19-20 which indicated that the court's remarks on this point did not form part of the reasoning which had led to the whole action being dismissed. He did however seek to support the Extra Division's conclusion on the second issue, which was that the action as a whole as pled was incompetent.
Discussion
"In matters of procedure and practice, and still more in matters of discretion, and, above all, where the Judges of the Court below are unanimous as to a matter of procedure and practice, the uniform practice of your Lordships' House has been not to differ from that opinion unless your Lordships are perfectly satisfied that it is founded upon erroneous principles."
That remains true today, and nothing that I am about to say is intended in any way to depart from it. Regrettably, however, it is clear that the test which he laid down is entirely satisfied in this case.
(a) the first issue
"Such a process would be quite inept for certain proceedings, for example, proceedings simply for damages for an infringement of article 3 by reason of isolated physical torture by a public official for whose actings the public authority was vicariously responsible. Such proceedings could, and should, be initiated by action. They might be so initiated in the sheriff court."
I agree, but I do not think that these cautiously worded remarks can be said to dispose entirely of the objection which seems to have been taken to the claim for breach of the substantive obligation under article 3. The appellant's claim relates to a course of conduct, not an isolated act of physical torture.
(b) the second issue
Conclusion